TAYLOR & Ors (Partners in The Cornerstone Practice) v Crockford (Unfair Dismissal)

A dismissal arising from an employee's refusal to agree revised working hours may be for some other substantial reason under Employment Rights Act 1996, rather than misconduct. An employer's later characterisation of the matter as misconduct does not alter the reason found for dismissal.

An unfair-dismissal finding cannot stand where its stated procedural bases contradict unchallenged findings of fact and the clear terms of the dismissal process. However, an appellate tribunal should substitute a finding of fair dismissal only where no properly directed Employment Tribunal could reasonably reach another conclusion.

The Claimant, a receptionist in a GP practice, was dismissed after refusing to work an additional late-afternoon session required by a revised rota. The Employment Tribunal found that the operational requirement was a substantial reason for dismissal, but held the dismissal procedurally unfair and reduced compensation to nil under Polkey.

The employers appealed against the unfair-dismissal finding. The Claimant cross-appealed the nil Polkey assessment. The central issues were whether the dismissal reason was misconduct or some other substantial reason, whether the procedural-unfairness findings were sustainable, and whether a finding of fair dismissal could be substituted.

1. Appeal allowed and remitted. The Employment Tribunal's finding that the reason for dismissal was the parties' inability to agree a rescheduling of hours remained in place. That was capable of being, and was correctly classified as, some other substantial reason under the Employment Rights Act 1996.

2. The Employment Judge's two reasons for holding the procedure unfair were perverse. The unchallenged findings showed that the Claimant had known from 27 February 2012 that refusal to agree the new schedule could lead to dismissal. Further, the disciplinary invitation expressly stated that dismissal was a possible outcome. Those findings could not support conclusions that the employer acted immediately with very little notice or failed to warn of possible dismissal.

3. The employer's description of the Claimant's conduct as misconduct did not affect the conclusion on the actual reason for dismissal. The unfair-dismissal conclusion, founded on the two unsustainable procedural findings, was therefore set aside.

4. The EAT declined to substitute a finding of fair dismissal. Under Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812, substitution required that no properly directed Tribunal could reasonably decide otherwise. Potentially material issues included the Claimant's ill health, possible adjournment, review of her position, her employment record and the treatment of other employees. Fairness was remitted for rehearing.

5. The cross-appeal failed. The Employment Judge made no legal error in the original Polkey assessment. If unfair dismissal is found on remittal, any Polkey issue must nevertheless be reconsidered on the evidence and procedure then relevant, in accordance with Polkey v AE Dayton Services [1987] IRLR 503.

• Employment Appeal Tribunal: Allowed the employers' appeal, set aside the finding of unfair dismissal, and remitted fairness for rehearing while preserving the finding of some other substantial reason.
• Employment Tribunal: Held the dismissal unfair on procedural grounds, while finding that the reason for dismissal was a business requirement constituting some other substantial reason. It made a nil Polkey assessment.